July 2015 July & DesignWrites Welcome to the sixth edition Focus on – clothing of DesignWrites cases sashay through

At Bird & Bird we’re passionate about design. DesignWrites the UK courts will unravel and explore the seemingly complex world of design Unregistered design rights are an important IP protection, offering practical advice by looking at recent design right in the fashion industry, given that the lives By Hilary Atherton cases, hearing from industry experts and sharing stories from the of clothing are often short and may not London wider design community. justify the cost of design registration. [email protected]

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If you would like advice on how best to protect your designs or take action There has been a recent flurry of cases before the UK to stop copycats, please contact Ewan Grist via [email protected] courts concerning rights in fashion designs, specifically unregistered design rights: G-Star Raw v Rhodi Ltd; Superdry v Animal (DKH Retail Ltd v H Young (Operations) Ltd); John Kaldor Fabricmaker UK Ltd v Lee Ann Ltd; and Dalco v First Dimension (see following pages). Of these four cases (decided between late 2014 and early 2015), three were heard in the Intellectual Enterprise Court (IPEC). Established in 2013, IPEC was intended to provide a less expensive and more streamlined alternative to actions in the High Court. Employing strict cost recovery caps of £50,000 and taking In this edition... a proactive approach to case management to reach a swift resolution, IPEC is widely considered to be meeting this aim. Focus on fashion – unregistered design cases Innovation and challenges in architectural sashay through the UK courts ...... 01 and community design – Q&A with Hello Wood ...... 16 The increasing importance of international design Registered Community designs for a plastic fork registrations under the Hague system ...... 06 found to be valid and infringed in France ...... 20 3D printing & Intellectual Property Lego takes action against copycat – what you need to know ...... 08 toy figures in Poland ...... 23 Blocking validity in The Netherlands – minor variations UK Government announces policy for extension of of earlier designs and the thin line between practicality term for industrially manufactured works ...... 24 and mere functionality ...... 10 Designs of the year 2015 ...... 27 UK: copyright in tableware surface designs ...... 12 Industry news ...... 31 General Court looks at design freedom Upcoming industry events & awards ...... 32 in Argo v. OHIM ...... 14

Focus on fashion – clothing design cases sashay through the UK courts & 01 Unregistered Rights in the fashion industry Practical tips • There are two categories of unregistered design 1. Keep a design trail. The alleged infringer in John Kaldor right (UDR) in the UK; UK and Community UDR. Fabricmaker UK Ltd v Lee Ann Fashions Ltd was able • Both UK and Community UDR arise automatically and to show credible evidence from its print as protect the whole or part of its appearance arising to how, stage-by-stage, she came to design Lee Ann’s from its shape or configuration. However, Community ‘tribal print’ fabric independently of John Kaldor’s UDR also provides protection for the appearance of a tribal fabric design. Conversely, in G-Star Raw v Rhodi product resulting from its colour, texture, materials Ltd, the absence of a paper trail showing how Rhodi and/or ornamentation, and has effect throughout came up with its jeans design contributed to a finding the EU. of infringement. Likewise, in Dalco v First Dimension, an absence of evidence showing that First Dimension’s • Unlike registered designs, in order to succeed in a design pre-dated Dalco’s was fatal to its defence. claim for infringement of UDR (Community or UK), it is Accurate and contemporaneous records of how, when necessary to show that the relevant design was copied and by whom the design was created by are essential. by the alleged infringer. 2. Beware of over reliance on others’ designs. Fashion, • Copyright may also subsist in patterns on fabrics. by its nature, often involves the amalgamation of Copyright is again an unregistered right and arises different aspects of earlier designs. However, inG-Star automatically for original works. Raw, evidence that Rhodi had used a sample of G-Star Raw’s ‘Arc Pant’ to communicate design ideas to the manufacturers of its infringing pants was damaging to its case. 3. Don’t forget copyright. Copyright can sometimes be relied upon in addition to design rights. For example, in John Kaldor, the claimant’s tribal design was created on a computer. Therefore, the relevant computer file was protected by copyright and the design itself (i.e. the output of the computer file) was protected by Community UDR. 4. Don’t necessarily dismiss UK UDR. While Community UDR protects aspects of surface decoration which is not protected under UK design law and colour which will often be central to fashion designs, Community UDR only lasts for 3 years. UK UDRs have a longer life and last for at least 10 years.

02 & Focus on fashion – clothing design cases sashay through the UK courts Recent fashion cases

G-Star Raw CV v Rhodi Ltd & Ors [2015] EWHC 216 (Ch) Superdry v Animal (DKH Retail Ltd v H Young John Kaldor Fabricmaker UK Ltd v Lee Ann Dalco v First Dimension [2015] EWHC 760 (IPEC) Date: (Operations) Ltd [2014] EWHC 4034 (IPEC) Fashions Ltd [2014] EWHC 3779 (IPEC) Date: February 2015 Date: Date: February 2015 Court: December 2014 November 2014 Court: High Court Court: Court: Intellectual Property Enterprise Court Rights: Intellectual Property Enterprise Court Intellectual Property Enterprise Court Rights: Unregistered UK design right Rights: Rights: UK & Community unregistered design rights Outcome: UK & Community unregistered design right Unregistered Community design right; copyright Outcome: Infringement Outcome: Outcome: Infringement (summary judgment granted) Rhodi’s nine separate styles of jeans infringed Infringement No infringement First Dimension’s ‘Daniel Rosso’ shirt infringed Dalco’s G-Star’s unregistered UK design rights in its ‘Arc Pant’ H Young’s Animal branded gilet infringed the A dress fabric supplied to Marks & Spencer by Lee unregistered design rights in its ‘Dalco’ shirt design. jeans design, which was characterised by a highly unregistered design rights in parts of DKH’s Superdry Ann did not infringe the copyright or unregistered The two were essentially identical, and First Dimension architectural cut with an asymmetric tapered leg that branded hooded gilet. However, only secondary Community design right in John Kaldor’s fabric as had no prospect of proving that its Daniel Rosso design turned around the human leg. The similarities were infringement by importing and selling was alleged copying could not be proven. Lee Ann’s evidence of pre-dated the Dalco shirt design, or any evidence of striking, there was evidence that Rhodi had used a (for which it must be shown that the alleged infringer independent design was credible, and the similarities independent design. sample of the Arc Pant to communicate design ideas knew or had reason to believe that the articles were between the two designs were not so compelling as to to its manufacturers, and it was unable to produce infringing). Therefore, while Superdry’s unregistered point to unconscious copying. evidence of independent design. Community design rights were found to have been infringed, its UK unregistered design rights were only infringed from the date of Superdry’s cease and desist letter to Animal, as Superdry had produced no evidence to show that those in the clothing industry would otherwise know that copying a garment would constitute an infringement of IP rights.

JK Fabric LA Fabric

Source: BAILII Database

Source: BAILII Database

04 & Focus on fashion – clothing design cases sashay through the UK courts Focus on fashion – clothing design cases sashay through the UK courts & 05 For designs created in the USA, the applicant first needs to The increasing importance of obtain a license from the United States and Office (USPTO) before filing a design registration outside of international design registrations the USA. Unlike many national offices and OHIM which only check for under the Hague system formalities, the national offices in the USA and Japan carry out a substantive examination of design applications, which Two of the world’s biggest economies, namely the USA might lead to correspondence with the examiner and a longer and Japan, recently joined the Hague System for the By Jana Bogatz registration process. International Registration of Industrial Designs. Munich While the registered Community design allows a protection [email protected] in the EU for up to 25 years (five-year terms of renewal), the maximum duration of design protection in Japan is 20 years and only 15 years in the USA.

Comments Even though the Community design system is – with International Design Registrations The WIPO only verifies that the application meets all formal more than 80,000 applications per year – still much For needing protection of their designs in more than requirements but does not undertake substantive examination more popular, the IR design system with about 3,000 one country particularly where protection is needed outside (e.g. for novelty of design) and, therefore, cannot reject an applications per year is constantly growing. In 2013, the the EU, an International Design Registration (IR design) may application on substantive grounds. The national or regional WIPO counted 27,838 active registrations that contained be the perfect tool. offices undertake the substantive examination (if any) and 116,571 designs. By filing a single application with the WIPO (World Intellectual decide whether the design is granted protection in the For many years, the Hague member states only Property Organization), an applicant can obtain protection for designated member state. comprised a number of European countries and some up to 100 designs belonging to the same Locarno class in up African countries, while American and Asian countries to 83 countries, namely in the 64 Hague member states and USA and Japan joining the IR system were missing altogether. The accession of the EU/OHIM territories covered by intergovernmental agreements The USA and Japan have recently joined the Hague system. and OAPI in 2008 increased the number of countries, (EU/OHIM1 & OAPI). Unlike the registered Community design, Since 13 May 2015, US and Japanese applicants are able to but many countries of economic importance were which is a single right enjoying protection throughout the file IR design applications Further, applicants filing IR design still missing. EU, the IR design is comparable to a bundle of national applications are now able to designate the USA or Japan for design protection. After South Korea joined the Hague system in 2014 design applications. Therefore, the IR design is treated in and the recent additions of the USA and Japan, the the designated territories under the respective national Applicants that wish to designate the USA or Japan should importance of the IR design system will certainly design laws. be aware of some specific requirements. For example, when increase. However, other major countries like Australia, IR designs are usually more time and cost efficient where designating the USA, the applicant has to additionally submit Canada, China or Russia are still missing and IP right protection in multiple territories is sought, as the filing, a Declaration of Inventorship, or, if not possible, a Substitute owners will therefore need to file additional national renewal or any changes (limitation, assignment, etc) can Statement in Lieu of a Declaration of Inventorship. It is also applications in these countries. be done in one step only and in English, French or Spanish recommended to add a description of the reproductions filed. language. However, IR designs can only be filed by a person Further, the applicant should be aware that no deferment or entity that has its seat or domicile in one of the member of publication of the design (so called “filing under secrecy”) states of the Hague system. can be requested in the USA.

1 EU-wide protection can be requested through the international registration system.

06 & The increasing importance of international design registrations under the Hague system 3D printing & Intellectual Property – what you need to know The ability to easily, quickly and cheaply design and manufacture items is no longer just a pipe dream – 3D printing is becoming part of everyday life for domestic users, independent designers and large scale manufactures alike. 3D printing offers a multitude By Ewan Grist London of opportunities. Rapid prototyping, spare part production and [email protected] customisation are all being revolutionised and industries ranging from fashion & luxury goods to biomedical sciences to aerospace are all taking advantage. But a myriad of intellectual property issues lurk just below the surface…

Can I 3D print whatever I want? Are there any exceptions? Am I ok to use a 3D scanner to create my own CAD file? If you are 3D printing an article which you designed, there’s Yes. Firstly, design rights and copyright only last for a It depends on what you are scanning. If you are scanning no problem. certain period of time (ranging from 3 years up to 70 years someone else’s article without their permission, then the 3D If you are 3D printing an article which was originally after the death of the creator, depending on the right). printing of the resulting CAD file could still infringe designed by someone else, you may well be infringing If protection has expired, then the article can be freely their rights. their IP rights. The original designer could for instance copied. Secondly, design protection is usually not available own registered and unregistered design rights in the shape for spare or component parts, so these can sometimes be What about customising an existing design? and appearance of the article; and a separate copyright in freely copied. Depending on the extent of the changes you make, you may the CAD file for that article. If you 3D print such an article Finally, there are certain exemptions where articles are made still be infringing the rights in the underlying original design. without the original designer’s consent, you could be solely for private and/or for non-commercial purposes. It is a question of degree; the more substantial your changes, infringing those rights. the lower the risk of infringement. If I pay to download a 3D design file (i.e. a CAD file) If the article also bears a third party’s trade mark, you could How can I protect my own original designs? be infringing that trade mark if you were then to offer or sell from the internet, do I have the right to 3D print an There are a variety of rights, registered and unregistered, the article. article to that design? which may be available to you. For designs that are Not necessarily. It still depends on whether you have the particularly important, get them registered to give more consent of the original designer. Just as with downloading robust, longer protection. Other designs can still benefit from music / films, there are certain websites from which you can the limited protection offered by unregistered rights, but it’s download authorised files and others where the files are important to keep comprehensive evidence of their creation. unauthorised. Note that copyright can subsist in the CAD file itself (as distinct from any design right in the article embodied in that CAD file). Just as with music and film files, file sharing without the consent of the copyright owner is unlawful.

08 & 3D printing & Intellectual Property – what you need to know 3D printing & Intellectual Property – what you need to know & 09 Unfortunately for KOZ, the court was also of the opinion Blocking validity in The Netherlands that there was a serious chance that the 2005 RCDs would Comments also be declared invalid for lack of individual character. The This judgment once more demonstrates the tension – minor variations of earlier court based this view on an earlier design from the German between on the one hand developing a product which company Formzeug, for which a German had is the most practical for its use and on the other hand designs and the thin line between been registered in 1996. In the court’s preliminary view, ensuring that the product is more than merely functional the 2005 RCDs did not evoke a different overall impression and sufficiently different from other competing products than the Formzeug design, as both blocks were designed in so as to qualify for design right protection. Furthermore, practicality and mere functionality a minimalist industrial style, had three or four cut-aways to By Nina Dorenbosch the case confirms that where only small changes are guide the cables and were made from smooth material of a KOZ Products is a developer of cable blocks for the wiring of cables. and Manon Rieger-Jansen made to a product, registering the design of the updated rectangular shape. KOZ noted a difference in the coverings product as a new design may be difficult because the For many years Adinco had sold KOZ products, including the KOZ Uni The Hague at the bottom of the cable block (see highlighted picture of earlier generations of the product may be cited as blocks which were protected by four RCDs filed in 2005 and 2006. [email protected] the 2005 RCD) but, according to the court, these coverings [email protected] novelty-destroying or individual character-destroying could not give the design individual character as they were prior art. solely dictated by their technical function (Article 8(1) of the Community Design Regulation). For similar reasons, the court ruled that the KOZ Uni Following the end of the commercial relationship between blocks did not merit copyright protection, since technical Adinco and KOZ, Adinco started to produce its own cable functionality must be left aside in a copyright assessment. blocks under the name Fox Uni. KOZ brought preliminary As for the other characteristics of the Uni block, these were injunction proceedings against Adinco before the District dictated by aesthetic/creative choices rather than functionality Court of The Hague, claiming that the Fox Uni blocks infringed and were too minimal to warrant copyright protection. its registered Community designs (RCDs) and copyright and Finally, the supply of Fox Uni blocks did not constitute an KOZ RCD (2005) KOZ RCD (2006) furthermore constituted an unlawful act (slavish imitation). act of unlawful competition either. Adinco took sufficient The PI was refused and the court dismissed all of KOZ’s claims. measures to prevent confusion between the KOZ Uni blocks and the Fox Uni blocks. The inclusion of similar coverings at Judgment the bottom of the block was deemed lawful, since omitting The court in The Hague found that there was a serious chance this feature would detract from the reliability and usability that KOZ’s two RCDs filed in 2006 would be declared invalid of the Fox Uni. The fact that until several years ago Adinco in proceedings on the merits or before OHIM as they lacked had sold the KOZ Uni did not result in a different conclusion individual character in comparison with KOZ’s two earlier as the design of a product which is available on the market is Adinco Fox Clamps RCDs filed in 2005. Whilst the parties agreed that a designer public knowledge, rather than KOZ’s proprietary know how. of cable blocks would have limited design freedom, and the The mere fact that Adinco had knowledge of KOZ’s customer informed user would therefore notice small details, the court relationships was insufficient to give a presumption of was of the view that a minor difference of three as opposed unlawfulness and to find otherwise would impede freedom to a single ‘connection point’ would be insufficient to create of competition. Formzeug cable block a different overall impression (see highlighted picture of the 2006 RCD). Source: IE Forum

10 & Blocking validity in The Netherlands – minor variations of earlier designs and the thin line between practicality and mere functionality Blocking validity in The Netherlands – minor variations of earlier designs and the thin line between practicality and mere functionality & 11 UK: copyright in tableware surface designs The case of Bodo Sperlein Ltd v (1) Sabichi Ltd and (2) Sabichi Homewares Ltd2 related to an allegation of copyright infringement in a tableware design called ‘Red Berry’, designed in 2001 by Mr Sperlein of Bodo Sperlein Ltd (BSL). The Red Berry collection was a signature By Nick Boydell collection of BSL. In 2013 BSL noticed that the defendants Sabichi London [email protected] had been selling items of tableware which BSL considered had been C copied from the Red Berry design. The Sabichi range was called ‘Red Blossom’ and a comparison of the two designs is below:

page 18), if there is sufficient similarity between the works, The judge was not convinced by Sabichi’s evidence of an account of profits from Sabichi – in other words, Sabichi was then copying can be inferred; the more similar alternative source of inspiration for the designs; although the compelled to pay over its profits earned from the sales of the the works are, the more convincing the defendant’s designer stated that the inspiration came from photographs infringing items. evidence of independent design will need to be to found on the internet. Overall he found that Sabichi had The court considered what costs could be deducted from overcome this inference. not explained away the similarities between the designs; revenue in order to arrive at an appropriate figure for In this case, the judge found that the similarities shown although he accepted that the designer did not recall seeing Sabichi’s profits. The judge reiterated the rule that general above were so great that they gave rise to an inference of the BSL design, he could not exclude the possibility that she overheads cannot be deducted – only costs which are copying. He noted various differences pointed out by the had seen them but had now forgotten. associated solely with the acts of infringement. In this case, defendants (such as the smooth twig of the Red Blossom As a result, the judge found that there had been copying the judge allowed deduction of import duty incurred by design as opposed to the more realistic and detailed of a substantial part of BSL’s design, which resulted in Sabichi when importing the items from China, however he appearance of the Red Berry design), but overall the judge copyright infringement. did not allow any general overheads. As a result, the judge Source: BAILII Database considered that he would struggle to say which was which The judge allowed an application by both parties to submit awarded BSL over £30,000, plus interest. without close inspection. One key similarity was the colour; late evidence at the trial itself; however he was in particular This case highlights the importance of creating a paper trail the judge found it unlikely that Sabichi would employ the critical of Sabichi for failing to provide relevant disclosure when making a design. As well as the date of the design BSL claimed copyright in the Red Berry design and sued same shade of red as BSL out of coincidence; Sabichi claimed documents in a timely manner. and the designer, the documentation should record the Sabichi for copyright infringement at the Intellectual that this was a shade from its standard colour palette, Usually, in English proceedings the question of liability influences behind a design; this will help in the event of Property Enterprise Court (IPEC). however the judge rejected this, noting that Sabichi had not and the question of quantum (damages) are dealt with in any future dispute, to either support the originality of the In order to establish copyright infringement in respect of submitted evidence of any other of its products using that separate trials, with the liability part of the case dealt with copyright work, or to rebut an accusation of copying. artistic works such as the surface decoration on tableware, it same red. first. However in the IPEC, which is designed for lower must be shown that there has been copying of a substantial The judge then considered Sabichi’s evidence of independent value IP disputes, these issues can be dealt with at the same part of the original work. No copyright infringement will design. Sabichi’s designer was adamant that she had never trial, which occurred in this case. If the defendant is found be found if a defendant can show that their design was seen any designs by BSL. However she did admit that she liable for copyright infringement, among other remedies the independently created. read the Sunday Times Style magazine and attended the claimant can choose between damages and an account of There is rarely clear evidence of actual copying. However, as 2006 Maison et Objet design show; in both of which the BSL’s profit. In this case, the judge accepted BSL’s request from an noted in our report on John Kaldor Fabricmaker UK Ltd v Lee Red Berry collection had been shown. Ann Fashions Ltd (in our March 2015 edition of DesignWrites,

2 [2015] EWHC 1242 (IPEC).

12 & UK: copyright in tableware surface designs UK: copyright in tableware surface designs & 13 General Court looks at design freedom in Argo v. OHIM In 2010, Clapbanner filed an application for registration of an RCD for ‘advertising articles’, as show below. The designed advertising article was intended for group events. Unfolded it would be used as a signboard that conveyed a message when it was held up. Folded like By Domien Op de Beeck an accordion it could be used to produce ‘clapping’ sound effects. Brussels [email protected]

In first instance, the Invalidity Division revoked Clapbanner’s Comments it is being compared. Accepting such a constraint will also RCD for lack of individual character. However, the Board of One noteworthy point of the judgment was the GC’s considerably lower the standard for individual character. As Appeal (BoA) subsequently found that the Clapbanner design definition of the relevant product for the purpose of such, it arguably becomes a matter of policy to decide what had individual character, and reinstated the RCD. determining the constraints on the designer’s freedom. of innovation merits the reward of design protection. Source: OHIM database Indeed, that issue remained undetermined even following Note in this regard that Recital 14 of the Community The General Court’s decision the Grupo Promer4 judgment. In this case, the GC was willing Designs Regulation calls for a design that conveys an overall In April 2011, an application for a declaration of invalidity In its judgment dated 28 January 20153, the General Court to restrict the relevant product to a lightweight signboard impression that is clearly different from the design corpus. was filed at OHIM against the RCD (pictured above). In (GC) confirmed the findings of the BoA. The GC found used at group events to convey written messages in unfolded Once the GC had established the very limited degree of support of its claim, the intervener (Argo) referred to several the contested design was new in that the appearance of state and to produce a clapping sound in folded state. This design freedom, it found that the (only) remaining features of its own earlier designs for similar advertising articles, as its handles differed in more than immaterial details, as limited definition was instrumental in the GC’s finding that where there was some design freedom (i.e. the handles) shown below. was perceptible when placing the contested design and there was equally limited design freedom. played an essential role in the overall impression created prior designs side by side. The GC agreed with the BoA Another issue was whether market expectations could serve by the design. That is surprising given that the handles of that, because of the nature and function of the underlying to constrain design freedom. In this case, the GC appeared the contested RCD were depicted by dotted lines (top and product, there was very little design freedom for the to think they could. The GC opined that a rectangle was bottom of left, and top of right representation). As discussed shape and size, and the foldable nature of the signboard. the “most obvious” shape for this type of signboard and in the March 2015 edition of DesignWrites5, dotted lines As a result, the handles were deemed to be the key design therefore agreed to disregard the significance of that part of typically represent a disclaimed or non-essential feature. features, conveying a different overall impression. Moreover, Source: OHIM database Source: OHIM database the contested design. However, arguably market expectation In the case at hand, dotted lines were combined with a the GC considered the argument that parts of the handles No 796 446-0001 No 796 446-0002 is largely a self-imposed constraint. Put another way, does a filled line (bottom of the right representation), arguably were not always visible as being irrelevant, stating that such signboard look like the ones on the market because it needs representing in its open and closed state. prerequisite only applies to component parts of a complex to or because it would be expected to do so? By accepting This aided in distinguishing the contested design from product (Article 4(2) of the Community Designs Regulation); market expectation as a relevant constraint on design the design corpus. the advertising article was not deemed to be a complex freedom, this further limits the scope of protection afforded product. Finally, the GC confirmed that bad faith does not to the contested design and that of earlier designs to which in itself constitute a ground for RCD invalidity.

Source: OHIM database Source: OHIM database No 769 446-0003 No 796 446-0004 4 CJEU 20 October 2011 Case C 281/10, Grupo Promer Mon Graphic v. OHIM. 3 ECFI 28 January 2015, Case T-41/14, Argo Development and v. OHIM. 5 http://www.twobirds.com/~/media/PDFs/NewsLetters/2015/DesignWrites%20by%20Bird%20%20Bird%20March%202015.PDF

14 & General Court looks at design freedom in Argo v. OHIM General Court looks at design freedom in Argo v. OHIM & 15 Q1 – You have been organising your signature event, Q4 – What do you think are the most useful / powerful tools Innovation and challenges in the summer art camp, for years. What are the biggest for protecting the interest of the authors, designers or your accomplishments and challenges it brings? company (legal, marketing or any…)? architectural and community Perhaps the biggest accomplishment was being able to make For a program that changes so dynamically, where not only the program visible in an international scene. Professionals, the events, but the resulting installations are also temporary, whose work is important to us, are interested in the program, the best protection is publicity and always making something design – Q&A with Hello Wood they accept our invitations and participate in our workshops. new. Of course this only works if the legal background is Hello Wood is an and design studio, organising projects Last year we cooperated with the Miralles-Tagliabue Studio deliberate and guaranteed. Luckily we’ve only had few minor from Barcelona, this year we have the opportunity to negative experiences, but as the project evolves, the legal and events defined by openness, experimenting, social sensitivity, By Bettina Kovecses welcome workshop leaders like Piers Taylor from Invisible guarantees must be developed as well. innovation and development. It was founded by Peter Pozsár, Budapest Studio or Katsuya Fukushima from Japan and the incredible architect / curator; András Huszár, architect and David Ráday, [email protected] Urban-ThinkTank studio. Our biggest challenge is to constantly Q5 – There are emerging trends of open source architecture media designer / art director. develop the program professionally and to communicate the platforms like Paperhouses? What impact do you foresee these results in a way that reaches a wider public. could bring? Open source is drifting back from online to off-line, facing Q2 – What are your favourite designs or products and why? all challenges of this border crossing. In my opinion (Peter It’s hard to pick one product, but in general we like things that Pozsár) that most important difference is that in the off This longstanding project had become the Popular Choice give a smart and innovative response to a problem, besides line work open source is “only” able to generate a plan, a and Jury winner of the Architizer A+ Awards in the category being aesthetically valuable of course. Objects that are capable methodology, that still awaits to be realised. What I find of Architecture + Learning! DesignWrites invited the three of making life easier in a way. We prefer products that are difficult about this is that however precise a plan is, the founders for a short Q&A. designed in a way that considers the entire life cycle of the building and realisation of it requires further skills. Several product, from production to recycling. We also aim to work impressive projects seem to get stuck or develop slowly due this way, it is an extremely important task in the field to the lack of these skills perhaps. In our camps we focus of mobile and temporary architecture. on developing these skills, and we tried to summarise our experiences and methodology in a book recently. Practice is Hello Wood started as an art camp in 2010 for architecture Q3 – According to your opinion how are Intellectual Property key in gaining skills and capability for building; it can hardly and design students and has grown into a unique international rights valued in this very changing field of temporary be substituted by other tools. 3D printing could resolve this project involving more than 30 countries. The program architecture and design? concern. Open source and 3D printing could supplement each welcomes university students and young professionals It’s difficult to talk about property or intellectual property other perfectly, creating an efficient and revolutionary result. yearly from Sweden to the United States who work in in this field for several reasons. On the one hand, often the teams for 8 days to bring the project to life. The teams are life time of a temporary object is shorter than the time it led by experienced and successful workshop leaders from takes to get the legal protection. Also, when it comes to the prestigious architecture studios around the world to provide workshop and festival, the product is really the know-how, an interdisciplinary and international working environment the methodology. Protecting this is the most important yet complementing university studies. most difficult task, that’s why the support of Bird & Bird is extremely valuable to us.

16 & Innovation and challenges in architectural and community design – Q&A with Hello Wood Innovation and challenges in architectural and community design – Q&A with Hello Wood & 17 Q6 – Hello Wood brings several socially sensitive projects to life. What are the commercial possibilities in your work and what strategies do you follow for maximising it? We always try to consider social aspects in our commercial works as well, aiming to carry a socially responsible message and designing an entire life cycle for the object. Due to the visibility of our program, we are contacted with commissions, our team runs an architect and design studio throughout the year, we focus on designing and building temporary wooden structures for events, festivals, public , etc. Also, we organise team buildings based on our experience and methodology of the camps. The first step of maximising these strategies is to do quality work. The best communication is if the client is satisfied, they should feel that no matter how small or big the scale is, the project receives maximum attention. We also develop products; so far only on a small scale but soon we would like to enter the market with more complex developments.

Q7 – You have just won two Architizer A+ awards, and also published a book on your experiences and experiments of the last couple of years. Based on your experiences and the rapid technological development (such as 3D printing) what the future would bring to the architecture and design business? Yes, the awards are a great honour to us. It gave us another feedback that it’s worth working so hard and that an architectural program coming from a small country can be internationally recognised. We believe not only architecture, but in a wider scope our material world is facing major changes right now, that can be perhaps compared to the revolution of book printing. Upcoming new technologies could liberate basically unreachable forms and content, not only in form, but in function as well. We hope these new technologies will be truly accessible to everyone, however it will create several questions in the field of intellectual property rights as well.

For more information about Hello Wood and their work, please visit http://www.hellowood.eu/

Images are provided by the kind courtesy of Hello Wood. Hello Wood is a trade mark registered in Hungary. Registered Community designs for a plastic fork found to be valid and infringed in France In the recent case of Europlastiques v Germay Plastic6, the Court of Appeal of Paris upheld the first instance decision finding the following By Benoit Lafourcade registered Community designs (“RCDs”) for a plastic fork belonging to Lyon French company Europlastiques to be both valid and infringed: [email protected]

Validity The court then held that the informed user, by reference to The defendant (Germay Plastic) argued that the RCDs of which the individual character of the claimant’s RCDs were Comments the claimant (Europlastiques) lacked novelty and individual to be assessed, was any person buying a pasta box sold with The outcome of this case may have been different had character due to prior fork designs, in particular designs by a ready to use fork. Turning to design freedom, the court the defendant been able to demonstrate the effective Sodebo which were alleged to be prior art. The court however noted that the defendant itself argued that a fork must include disclosure of Sodebo’s earlier fork design by submitting found that the defendant had failed to prove that the Sodebo’s certain technical features (e.g. for pricking food). The court solid and objective evidence. As demonstrated in forks were disclosed before the date of filing, stating that considered however that the RCDs showed specific features this case, affidavits in themselves are not sufficient to the mere communication of an affidavit from the purchasing (general symmetrical and curved shaped and shape of the prove a fact such as the disclosure of an earlier design, manager of Sodebo was insufficiently reliable given that it spoon on the opposite side) that were not present in any of the although they may serve to corroborate and/or clarify Source: OHIM Database did not include any reproduction of the designs in question. prior art relied upon by the defendant, hence it had failed to the accuracy of additional documents (see OHIM, RCD No. 001647769-0001 (filed December 15, 2009) Images of the Sodebo design separately communicated by the show that the RCDs lacked individual character. decision of 14/10/2009, R 316/2008-3 – ‘Fireplaces’, para. defendant to the court were not dated and only The counterclaim for invalidity was accordingly dismissed. 22). Nonetheless, it is clear that affidavits and other partially legible. documentary evidence originating from parties having The court held that the other earlier designs relied upon by Infringement an interest in the proceedings have a lower probative the defendant displayed different features to the RCDs and, as The court then proceeded with the assessment of value compared to documents having a neutral source such, were not novelty destroying. infringement, noting that the defendant had only challenged (judgment of 14/06/2011, T-68/10, ‘Watch attached to a the claimant’s infringement claim by way of disputing the lanyard’, para. 33-36). validity of the RCDs. The court held that despite the slight difference in the width of the forks, the disputed forks manufactured and commercialized by the defendant produced the same overall impression on the informed user as the RCDs. Source: OHIM Database The court accordingly upheld the first instance decision and RCD No. 001647769-0002 (filed December 15, 2009) found the claimant’s RCDs to have been infringed.

6 Court of appeal of Paris, 5/12/2014, case 14/03506

20 & Registered Community designs for a plastic fork found to be valid and infringed in France Registered Community designs for a plastic fork found to be valid and infringed in France & 21 Lego takes action against copycat toy figures in Poland On 5 January 2015, the court ruled in favour of LEGO Juris A/S (LEGO) in a design infringement case brought against the Polish company, Artyk sp. z o.o. (ARTYK) (case No. XXII GWwp 24/13). The ruling is not yet final. By Piotr Dynowski and Aleksandra Bączykowska Warsaw [email protected] [email protected]

ARTYK imported 246 sets of toy figures alleged to infringe The designer’s freedom in developing the designs was wide LEGO’s registered Community designs 128681-0004 and – there were many considerably different toy figures on the 128681-0002. The court ruled that, as ARTYK’s products only market with a human shape. had different shape of the figures’ heads, they did not produce The court agreed that design freedom may be limited by a different overall impression on the informed user. functional, technical and commercial reasons but disagreed that market trends and fashion should be taken into account; to conclude otherwise would result in narrowing the protection for new and original designs as they gained popularity and economic value due to the designer’s efforts.

Source: OHIM Database

Whilst ARTYK did not challenge the validity of LEGO’s RCDs, it argued that their scope of protection should be narrow on the basis that there was only limited design freedom available. The court found however that LEGO’s designs protect the specific shape of toys, which may be used in different products or toy sets, be made of various materials and decorated in different ways. The court did not agree with ARTYK that LEGO was trying to monopolise the human shape of toy figures because a human-toy may be represented in different ways and shapes.

Lego takes action against copycat toy figures in Poland & 23 UK Government announces policy for extension of copyright term for industrially manufactured works

By Mark Livsey London [email protected]

Section 52 of the Copyright, Designs and Act 1988 Therefore, after 6 April 2020 all artistic works, including those currently limits copyright protection for artistic works which that have been industrially reproduced, will benefit from the have been industrially manufactured: where more than 50 full term of copyright protection of the life of the author plus copies of any such artistic works have been made by or with 70 years. the licence of the copyright owner the period of copyright protection is limited to 25 years. The Intellectual Property Office has published the government’s response to its consultation on the repeal of section 52 and has announced that the repeal will come into force on 6 April 2020. The government has also announced that it will exercise its powers to ensure that businesses trading in copies of industrially manufactured 2D and 3D artistic works will have an indefinite period to sell off existing copies, are prevented from making or importing new unlicensed copies and may freely deal with existing copies after the repeal comes into force.

24 & UK Government announces policy for extension of copyright term for industrially manufactured works Designs of the year 2015 With special thanks to Gemma Curtin, Curator.

Now in its eighth edition, the Designs of the Year awards and designers to by-pass the manufacturer by funding production exhibition provide a snapshot of the most stimulating new work costs with the aid of websites such as Kickstarter and the from around the world, across six categories: Architecture, Digital, development of to the point that Fashion, Graphics, Product and Transport. Past winners of the the environment has become a core element of mainstream Design of the Year include the One Laptop Per Child project, the design briefs. 2012 Olympic Torch and the UK government’s website GOV.UK. The exhibition opened to the public in late March 2015 and shortly Each year an international team of critics, curators and after the opening this year’s judges the artist Anish Kapoor, the practitioners are invited to select the year’s most inspiring and fashion writer Hilary Alexander, the Director of Ecole cantonale innovative designs. This year, 76 projects have been chosen. They d’art de Lausanne Alexis Georgacopoulos, the Architect Farshid include work from emerging practices and also well-established Moussavi, and Studio Director of Land Rover Richard Wooley ones. Some question preconceptions about the role of design, spent a day of good humour and strong debate to make the others offer pragmatic solutions to consumer needs. In their difficult decisions to choose a winner of each category and an range they express a diversity of intent and reveal the vital role overall winner. The judges were united in their responsibility of design as a problem-solver, a predictor of future developments to award projects that emphasise design’s impact on our lives and a cultural force. This year a set of criteria was issued to the now and in the future. Design that solves diverse problems nominators to outline the ’s definition of a Design with innovation, intelligence and wit, from an advertising of the Year as...Design that promotes or delivers change; Design campaign to promote the reduction of food waste: Inglorious that enables access; Design that captures the spirit of the year and fruits and vegetables, designed by Marcel for Intermarché; an Design that extends design practice. This clarity has in no way environmentally conscious University and business centre, UC reduced the comprehensive selection of design and the exhibition Innovation Center – Anacleto Angelini, designed by Elemental; is as ever full of the diverse, the unexpected and the uplifting. a medical chip to revolutionise drug testing, Human Organs- Among this disparate gathering there are themes and trends that on-Chips, designed by Donald Ingber and Dan Dongeun Huh; a emerge two of which are the growth of crowd-funding to support driverless car, Google Self-driving car designed by YooJung Ahn,

Designs of the year 2015 & 27 Photographer: Mirren Rosie Jared Gross and Philipp Habana; a crowd-funded initiative to rid the sea of plastic waste, The Ocean Cleanup designed by Boyan Slat, Jan de Sonneville and Erwin Zwart and a complex fusion of skilfully cut garments, Thomas Tait AW13/14 collection, designed by Thomas Tait. One of these will be chosen as the Design of the Year 2015, this overall winner will be announce in late June but you will be able to visit the exhibition at the Design Museum until March 2016.

Google Self-Driving Car. Photo by Gordon De Los Santos. Industry news

By Lindsay Gibbons London [email protected]

Designs for the future: a new wave energy device Twitter launches video feature A group of pupils from Castlemilk High, Glasgow, have On 11 June, Twitter launched their own video feature designed a floating wave energy converter and have now enabling users to shoot, edit and upload videos straight been named the Junior Saltire champions at the Celebration to the “twittersphere”. of Science and at the Glasgow Science Centre. All you need to do is download the app, which is available The team was lucky enough to test their gadget in the on iPhone and Android, to get started. world’s most advanced ocean simulator at the University For more details go to: of Edinburgh’s FloWave Ocean Energy Research. https://about.twitter.com/videos-on-twitter The winning design is simple but effective – it hangs vertically in the water and generates electricity by moving up and down with the waves. The students’ main idea was its use in disaster areas as it can be easily and quickly deployed. The competition which is funded by the Scottish Government in partnership with Skills Development Scotland (SDS), saw over 200 teams from around. Find out more at: http://www.eveningtimes.co.uk/news/pupils-making-waves- 209928n.128624542

Industry news & 31 Upcoming industry The London Design Festival Paris Design Week 19–27 September 2015 5–12 September 2015 events and awards London, UK Paris, France The festival features hundreds of Featuring design shows and open design events taking place across the studios around the city. city of London. http://www.parisdesignweek.fr/ http://www.londondesignfestival. com/events

Furniture China 9–12 September 2015 Shanghai, China AIGA Design Conference The 21st China International Furniture Expo, featuring a wide 8–10 October 2015 range of designs. New Orleans, USA http://www.furniture-china.cn/en-us/ The conference features over 90 guest speakers, networking receptions and exhibitions relative to the design Open Design Cape Town community. 13–23 August 2015 http://www.designconference. Cape Town, South Africa aiga.org/ The third edition of Open Design Cape Town will focus on the theme “Design is for tomorrow”. http://opendesignct.com/

32 & Upcoming industry events and awards Upcoming industry events and awards & 33 Contacts For further information please contact:

Ewan Grist Manon Rieger-Jansen [email protected] [email protected] Tel: +44 (0)20 7415 6000 Tel: +31 (0)70 353 8800

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